Fichtner v. Fichtner's Assignee

11 S.W. 85, 88 Ky. 355, 1889 Ky. LEXIS 39

• Court: Court of Appeals of Kentucky
• Decided: March 14, 1889
• Status: Published

Opinion

JUDGE PRYOR

delivered the opinion op the court.

John Fichtner, the husband of the appellant, Catherine Fichtner, being involved in debt, made an assignment of all his estate for the benefit of creditors, and by the terms of the deed much valuable real estate passed to the assignee. Fichtner and his assignee, Lochri, having sold several parcels of the land under executory contracts, filed this petition in the Louisville Chancery Court asking a sale and conveyance of the inchoate right of dower of the-appellant in this land so as to make a perfect title. In the petition it is alleged that the wife (Catherine) is a confirmed lunatic and has been so adjudged by the Jefferson Circuit Court, and this proceeding is had under an act of the Legislature approved March 14, 1878, providing for the sale and conveyance of the inchoate right of dower of married women who are confirmed lunatics. (General Statutes, page 325.) The act provides in express terms that whenever á married woman is a confirmed lunatic the circuit or chancery court of the county where the land is situated may, on the petition of the husband, adjudge the sale and conveyance of the inchoate right of dower. The wife was made a defendant with the proceedings all regular, and the land sold in the manner provided by the act, and conceding the power of the Legislature, which we think is unquestioned, to pass laws regulating the sale of such property belonging to those who are under the parental care of both the Legislature and the Chancellor, it is onjy necessary to determine the single question presented in this case, that arises from a construction given the last clause of section 3 of the act by the court below. That clause provides : “ Before any judgment shall be rendered in pursuance of the provisions hereof, the husband shall, before said court, execute with sufficient surety a covenant to the Commonwealth for the benefit of his wife, that she shall be paid the value of her inchoate right of dower in said land, should such right thereafter become complete, and to perform all orders of the court in the premises — such covenant and surety shall be approved by the court.” The case was referred to the commissioner with directions to ascertain the present value of the wife’s inchoate right of dower in the land sold by the husband and his assignee, and the commissioner reported back its value at nine hundred and eighty-six dollars. It is insisted by counsel for the wife that the bond to be given by the husband, required by the statute, secures, or should secure, to the wife the value of her dower in the estate conveyed in the event she survives her husband; in other words, she is to be paid the value of her dower now inchoate when the same thereafter becomes complete. If she survives the husband she takes as widow the value of her dower in money instead of the land itself, and dying before the husband, she takes nothing.

While there is some reason for urging such a construetion, on account of the awkward manner in which the ■clause in question is framed, we are satisfied, in looking to the object to be accomplished, in connection with the power conferred on the Chancellor, such is not a correct interpretation of the legislative intent.

The Chancellor is empowered to sell and convey the inchoate right of dower, and when sold, in order to pass this right, the committee, if the lunatic has one, if not, the commissioner, as the act provides, shall unite with the .husband, as the wife would if sui juris, in conveying her inchoate right in the land. The committee or commissioner represents the wife, passing her potential right, and the husband passing the fee. The effect is to enable the Chancellor to have executed to the vendee such a conveyance as the husband and wife could make if the wife was of sound mind.

The act further provides that the deed executed by the husband and the committee or commissioner shall pass the inchoate right of dower. It is manifest, therefore, that the purchaser acquires by such a conveyance all- the right that he would or could have acquired if the wife had been ■sui juris.

The question then arises, is the wife entitled to the present value of her inchoate right, or must she wait until the happening of her surviving the husband before •she can assert any claim by reason of the sale by the Chancellor ? The stipulation of the bond following the statute is, that she shall be paid the value of her inchoate right of dower in the land, and not the value of her dower in the event she survives her husband. She shall be paid that value should such right thereafter be complete. It might be argued, that the sum fixed as the value is not to be paid until the wife becomes discovert by the death of the husband, but such a construction would, in effect, depi’ive the wife of any present interest in the proceeds of a sale that estops her from asserting her l’ight to dower at the death of her husband, and is as unreasonable as allowing her, as against the husband and his sureties on his bond, the full value of her dower at her husband’s death, when its stipulation is that she shall be paid the value of her inchoate right. When did her right become complete ? The response is : When the sale was made under the judgment and perfected by a conveyance depriving her of all right in the' land. Before a judgment is rendered the bond is signed, payable to the Commonwealth, securing to the wife the value of what she parts with. This value you agree to pay the wife should such right thereafter be complete; so, whether the purchaser complies with his bid or not, the wife is made secure by the execution of a bond when-her right is sold and conveyed. It then becomes complete, and she or her committee at once entitled to the money. The wife, whether the husband is solvent or insolvent, may insist upon having set apart to her the value of this potential right. It has been often approved by this court, and in many cases held to be a fair equivalent as against creditors, for property passed to the wife by the husband in consideration of her relinquishment. If the wife had been of sound mind when this proceeding was had, she would have been equitably entitled, as against creditors, to the value of this potential right in the attempt, for their benefit, to perfect the title of the purchaser. It has a fixed or ascertainable value, and the Chancellor, under this statute, is authorized to do that ■which, the wife, if sane, could have done, first securing to the lunatic the value of that right the purchaser obtained, under the sale and conveyance. The money is the property of the wife; may be used and disposed of for her benefit through or by some one.authorized to act for her, and in such use the Chancellor will see that' her rights are protected. (Lancaster v. Lancaster’s trustees, 78 Ky., 198.)

There was an incumbrance on the realty sold, by way of mortgage, for five thousand dollars, and to this extent the wife, when sane, had relinquished her dower. This was deducted, and, we think, properly, from the value of the land when determining the value of the potential right of dower, and the mere fact that the relinquishment was to the one creditor or grantee can make no-difference. That mortgage debt has to be satisfied out of an insolvent estate, and to that extent the dower is gone, and the amount should be subtracted from the value of the entire land. The mortgage is.only a lien, but still its foreclosure carries with it all the right of the wife to the extent that the land may be sold to satisfy it, and,, therefore, the wife is only entitled to compensation out of the land left.

We construe the judgment below as vesting in the wife, the absolute right to the monied value fixed on her potential right, and must therefore affirm the judgment.